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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
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- Art. 31 para. 2 lit. e FADP
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- Art. 16 CCC (Convention on Cybercrime)
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- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 CCC (Convention on Cybercrime)
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- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 2 para. 2 AMLA
- Art. 2 para. 3 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 11 AMLA
- Art. 14 AMLA
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- Art. 24a AMLA
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- Art. 26a AMLA
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- Art. 29 AMLA
- Art. 29a AMLA
- Art. 29b AMLA
- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 38 AMLA
FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Scope of application for financial intermediaries within the meaning of Art. 2 para. 2
- II. Regulated financial intermediaries subject to
- Bibliography
- Materials
I. Scope of application for financial intermediaries within the meaning of Art. 2 para. 2
A. General remarks
1 In accordance with Art. 2 para. 1 AMLA, the AMLA applies to financial intermediaries and natural or legal persons who, on a professional basis, trade in goods and receive cash in payment (traders). There are two categories of financial intermediaries, each subject to a different supervisory regime: regulated financial intermediaries, which are defined in Art. 2 para. 2 AMLA and are subject to prudential supervision, which also covers AMLA aspects, and unregulated financial intermediaries, which are defined in Art. 2 para. 3 AMLA and are subject to supervision covering only AMLA aspects. The supervision of regulated financial intermediaries falls within the remit of their respective supervisory authorities (see Art. 12 AMLA).
2 The OBA applies, among others, to all regulated financial intermediaries (Art. 2 para. 1 let. a OBA). In this regard, it should be noted that until the end of 2022, the OBA only applied to unregulated financial intermediaries. Since January 1, 2023, Art. 2 para. 1 let. a AMLO has been amended to also include regulated financial intermediaries, insofar as the new Section 3 of Chapter 2 of the Ordinance on Obligations in Cases of Suspicion of Money Laundering also applies to them. The AMLO -FINMA applies only to regulated financial intermediaries pursuant to Art. 2 para. 2 let. a to d and dquater AMLA (see Art. 3 para. 1 OBA-FINMA).
B. Scope of application based on the person
3 Art. 2 para. 2 AMLA contains a list of financial intermediaries subject to supervision who are subject to the AMLA by law, due to their respective qualifications and their subjection to the relevant special laws and, in principle, regardless of the activities actually carried out (subject to let. c, cf. N. 38, and subject to Art. 2 para. 4 lit. c, cf. Art. 2 para. 4 N. 7 ff.). This list must be considered exhaustive, not only because of its wording, but also in view of the message of the law and the fact that the provision has been regularly adapted to cover new institutions.
4 Persons who do not fall under the list in Art. 2 para. 2 AMLA may, where applicable, fall within the scope of the AMLA pursuant to Art. 2 para. 3 AMLA, depending on the activities actually carried out.
5 It should be noted that the classification as a financial intermediary and thus the subjection to the AMLA for institutions under letters a to g is not linked to the obtaining of the respective authorizations or licenses. In other words, even in the absence of the authorizations or licenses required for the various institutions under the applicable special laws, e.g., in the case of fund management or the acceptance of deposits from the public without FINMA authorization, the institution concerned will nevertheless be classified as a financial intermediary within the meaning of Art. 2 para. 2 AMLA and will be subject to the AMLA.
6 In practice, regulated financial intermediaries will in principle be legal entities. In this case, the obligations of the AMLA apply directly to the legal entity, and not to its individual organs or employees. In accordance with Art. 8 AMLA, the necessary organizational measures must be taken to prevent money laundering and terrorist financing, particularly in terms of controls and personnel, who must receive adequate training. It is the responsibility of the bodies of the legal entity to implement these organizational measures, in particular those defined in Art. 23 ff. AMLA-FINMA, and to ensure that appropriate controls are carried out.
7 In certain cases, the financial intermediary may be a natural person or a partnership. With regard to natural persons, the provisions of the AMLA apply directly to them. In the case of partnerships, a case-by-case analysis must be carried out. According to doctrine, in a simple partnership, any person who carries out an activity as a financial intermediary must be classified as a financial intermediary and is thus directly subject to the AMLA in a personal capacity; in the case of general partnerships or limited partnerships, provided that the latter have a certain legal capacity, the companies must be considered as financial intermediaries, and not their individual partners.
8 When a natural or legal person acts as an auxiliary agent of a regulated financial intermediary, they will not be considered a financial intermediary if the conditions of Art. 2 para. 2 let. b ch. 1 to 6 AMLA are met; their actions will be covered by the authorization of the regulated financial intermediary for whom they are acting.
C. Scope of application in terms of subject matter
9 Since regulated financial intermediaries are subject to the AMLA due to their prudential status, it is necessary to determine the specific activities for which the obligations under the AMLA must be complied with, and the business relationships in which the due diligence obligations must be applied.
10 In practice, regulated financial intermediaries apply the provisions of the AMLA to the activities they carry out when these constitute financial intermediation. In the same vein, when conducting a prudential audit of a regulated institution, prudential audit firms verify compliance with the due diligence obligations under the AMLA in the context of business relationships that are subject to the AMLA, i.e., the business relationships of the institution's activities that constitute financial intermediation. Referring to Art. 1 of the Act, which defines the scope of the AMLA in relation to financial transactions, legal doctrine adheres to this practice and considers that the scope of application of the AMLA for regulated institutions is limited to financial transactions and related business relationships, which inherently involve a risk of money laundering. In order to determine which activities constitute financial intermediation and are therefore subject to the AMLA, Art. 2 para. 3 AMLA, the list of activities in letters a to g, and FINMA Circular 11/1 “Financial intermediary activities within the meaning of the AMLA” may be taken into account.
D. Territorial scope
11 While the AMLA does not contain any provisions defining its territorial scope, this is specified in the ordinance (Art. 2 para. 1 AMO) on the basis of Art. 41 para. 1 AMLA. Until the end of 2022, with regard to financial intermediaries, the AMLO applied only to unregulated financial intermediaries within the meaning of Art. 2 para. 3 AMLA, and the territorial scope was specified in the AMLO only for this category of financial intermediaries (see N. 2). Legal scholars were divided on the question of the territorial scope of the law for regulated financial intermediaries, with some authors considering that Art. 2 para. 1 OBA should also be applied analogously to regulated financial intermediaries, while others considered that such a broad interpretation was not necessary. The issue has now been resolved, as the new wording of Art. 2 para. 1 let. a OBA, in force since January 1, 2023, is clear and now also covers regulated financial intermediaries under Art. 2 para. 2 of the law.
12 In accordance with Art. 2 para. 1 let. a OBA, the OBA applies to financial intermediaries who carry out their activities in Switzerland or from Switzerland. This provision is similar to the territorial scope of application of the LEFin and the OEFin for financial institutions. Thus, by analogy with financial institutions under the FinIA, the decisive factors are not the location of the financial intermediaries' registered office or domicile, the place where the clients are domiciled, or the place where the assets involved in the business relationship are located. The decisive factor for the application of the AMLA and its implementing ordinances is the location of the financial intermediary's activity, which must be determined on the basis of all the circumstances.
13 FINMA Circular 11/1 “Financial intermediary activities within the meaning of the AMLA,” which clarifies the application of Art. 2 para. 3 AMLA and thus applies to unregulated financial intermediaries, sets out FINMA's practice with regard to territorial scope and can be taken into account in a similar manner for regulated financial intermediaries, since the latter are now also expressly included in Art. 2 para. 2 let. a AMLO (see N. 11). According to FINMA, a financial intermediary conducts its business in Switzerland or from Switzerland if it has a domicile in Switzerland or is registered in the Swiss commercial register, or if it employs persons in Switzerland who perform or conclude financial intermediary business for it on a long-term basis in Switzerland or from Switzerland, or who can legally commit it to such business (de facto branch).
14 Regulated financial intermediaries who conduct their business abroad without a physical presence in Switzerland are therefore not, in principle, covered by Art. 2 para. 2 or 3 AMLA and are therefore not subject to the AMLA, even if they have some business activity in Switzerland, e.g. if they have clients in Switzerland, if they visit their clients in Switzerland or if they seek new clients, solely on a “fly-in-fly-out” basis, without a legal branch or de facto branch in Switzerland.
II. Regulated financial intermediaries subject to
A. Banks and persons within the meaning of Art. 1b BA
15 In accordance with Art. 2 para. 2 let. a AMLA, banks within the meaning of Art. 1a of the Banking Act and persons within the meaning of Art. 1b of the Banking Act are classified as financial intermediaries. They are subject to supervision by FINMA and require authorization from FINMA in order to carry out their activities.
16 Persons who are primarily active in the financial sector and who i) professionally accept deposits from the public in excess of CHF 100 million or solicit the public to obtain them, ii) professionally accept deposits from the public up to CHF 100 million or cryptoassets designated by the Federal Council, or solicit the public to obtain them and invest or remunerate these deposits or assets, or (iii) obtain significant refinancing from several banks that do not have a significant stake in their capital for the purpose of financing, in any manner whatsoever, an indefinite number of persons or companies with which they do not form an economic entity (Art. 1a BA).
17 Persons within the meaning of Art. 1b BA are persons primarily active in the financial sector who i) professionally accept deposits from the public up to a maximum of CHF 100 million or cryptoassets designated by the Federal Council, or solicit the public to obtain them, and ii) do not invest or remunerate these deposits or assets (Art. 1b para. 1 BA).
18 The Swiss National Bank and mortgage bond issuing centers are not subject to the BA (see Art. 1 para. 5 BA) and are therefore not financial intermediaries within the meaning of Art. 2 para. 2 let. a AMLA (with regard to the Swiss National Bank, see also Art. 2 para. 4 let. a AMLA).
19 In accordance with Art. 35 FINMA-BAO, CDB 20 applies to banks for the verification of the identity of the contracting party and the identification of the controlling person and the beneficial owner of the assets. For persons under Art. 1b BA, Title 5 of the AMLO-FINMA (Art. 43a ff. AMLO-FINMA) applies.
B. Asset managers and trustees
20 In accordance with Art. 2 para. 2 let. abis AMLA, asset managers and trustees referred to in Art. 2 para. 1 let. a and b FINMASA must be classified as financial intermediaries. They are subject to supervision by a supervisory body authorized and supervised by FINMA and require authorization from FINMA in order to carry out their activities.
21 Persons who, on the basis of a mandate, may professionally dispose of their clients' assets within the meaning of Art. 3 let. c ch. 1 to 4 FSIA (Art. 17 para. 1 AMLA) on behalf of and for the account of clients are considered asset managers. . These are primarily “traditional” independent asset managers, who have power of attorney with discretionary management authority over their clients' assets deposited with a bank in Switzerland or abroad. It also covers persons engaged in any other form of “management” in connection with individual portfolios, e.g., advisory activities followed by the execution of transactions, or solely the receipt and transmission of client orders, as soon as there is a power of attorney or fiduciary holding of assets, even in the absence of any discretionary management.
22 Furthermore, in accordance with Art. 24 para. 2 LEFin, asset managers who operate below the “de minimis” threshold (see N. 34) are also considered asset managers within the meaning of Art. 17 para. 1 LEFin.
23 Persons who, on a professional basis, manage separate assets or dispose of them in favor of a beneficiary or for a specific purpose, on the basis of a trust deed, are considered trustees (Art. 17 para. 2 FISA).
24 Persons who are active in management or trustee activities but benefit from an exception, in particular on the basis of Art. 2 para. 2 LEFin, and are therefore not covered by the LEFin, e.g. single family offices or private trust companies (PTCs), are not to be classified as financial intermediaries within the meaning of Art. 2 para. 2 let. b AMLA. They may, where applicable, fall within the scope of the AMLA pursuant to Art. 2 para. 3 AMLA (see N. 4).
25 Title 5 of the FINMA-BAO (Art. 43a ff. FINMA-BAO) applies to managers and trustees and specifies, in particular, the requirements for verifying the identity of the contracting party and identifying the beneficial owner.
C. Fund management companies
26 In accordance with Art. 2 para. 2 let. b AMLA, fund management companies within the meaning of Art. 2 para. 1 let. d FINMASA qualify as financial intermediaries. They are subject to supervision by FINMA and require authorization from FINMA in order to carry out their activities.
27Persons who, on behalf of investors, independently and in their own name, manage investment funds in accordance with Art. 15 para. 1 let. a CISA or assume the administration of SICAVs referred to in Art. 13 para. 2 let. b CISA (Art. 32 FINSA) are considered fund managers. .
28In the area of fund management, the risk of money laundering is considered moderate. This is because there are no direct financial flows between investors and collective investments; instead, investments are made at the fund custodian bank by the bank of the final investors, which involves checks at various levels by institutions subject to prudential supervision. Certain relaxations have therefore been granted. With regard to investors, fund managers must verify the identity of the subscriber when subscribing to unlisted Swiss collective investment schemes and identify the controlling party or beneficial owner of the assets only if the subscription amount exceeds CHF 15,000 (Art. 40 para. 1 OBA-FINMA) . Initially set at CHF 25,000, the threshold was lowered in 2020 on the basis of FATF Recommendation 10, which provides for a threshold of USD 15,000, due to the change in the CHF/USD exchange rate. This provision establishes an obligation vis-à-vis the subscriber or beneficial owner at the time of subscription as a single obligation, rather than obligations vis-à-vis the investor based on a business relationship. The term “subscriber” refers to either subscription on one's own behalf or subscription in the name and on behalf of a client. Pursuant to Art. 40 para. 2 OBA-FINMA, fund management companies may not require explanations regarding the controlling owners or beneficial owners at the time of subscription if the subscriber is a financial intermediary pursuant to Art. 2 para. 2 lit. a to d AMLA or a foreign financial intermediary subject to anti-money laundering and counter-terrorist financing regulations and adequate prudential supervision. FINMA did not wish to define the term “adequate,” considering that this term cannot be assessed in a schematic manner. It is therefore up to the financial intermediary to assess adequacy on a case-by-case basis, using the country assessment reports and high-risk country lists published by the FATF. It should be noted that in practice, fund units are most often subscribed to by such financial intermediaries (in particular banks and securities firms), so that Art. 40 para. 2 OBA-FINMA is frequently applied and there is no need to identify the controlling party or beneficial owner.
29Furthermore, in practice, fund management companies entrust the performance of due diligence and documentation obligations in relation to managed collective investment schemes to the custodian banks of said collective investment schemes on the basis of Art. 40 para. 3 OBA-FINMA. This is because not only do fund management companies generally not have access to information about investors due to banking secrecy, but more importantly, the custodian bank is responsible for issuing and redeeming fund units (Art. 73 para. 1 LPCC) and thus maintains direct contact with the subscriber. In this context, the custodian bank already applies the due diligence obligations under the AMLA on its own behalf itself in relation to subscribers of fund units. When the fund management company entrusts the execution of due diligence obligations in accordance with this provision to the custodian bank, this does not, in our view, constitute outsourcing or a delegation of essential tasks within the meaning of Art. 14 FINMASA and FINMA Circular 18/3 “Outsourcing.” This option is explicitly provided for in Art. 40 para. 3 FINMA-BAO, which constitutes a special law, and fund management companies do not have the option of appointing a third-party delegate of their choice. They must designate fund custodian banks, which are also supervised by FINMA.
30In accordance with Art. 40 para. 4 OBA-FINMA, CDB 20 applies to the methods used to identify the counterparty, the controlling party and the beneficial owner of the assets, as well as to any other activities of the fund management company that are relevant to the AMLA.
D. Collective investment schemes and collective asset managers
31In accordance with Art. 2 para. 2 let. bbis AMLA, holders of a license under Art. 13 para. 2 let. b to d CISA, i.e., SICAVs, SCmPCs and SICAFs, as well as collective asset managers pursuant to Art. 2 para. 1 let. c FINIA, must be classified as financial intermediaries. They are subject to supervision by FINMA and require authorization from FINMA in order to carry out their activities. This does not include L-QIFs in the form of SICAVs and SCmPCs, as they do not have FINMA authorization and are not subject to FINMA supervision (Art. 118a para. 1 let. d LPCC). This provision was clarified in this sense when the amendments relating to L-QIFs in the LPCC came into force on March 1, 2024. In principle, L-QIFs are not subject to the LBA (see Art. 2 para. 4 let. e LBA) .
32This provision does not cover all institutions that require authorization under Art. 13 LPCC. Representatives of collective investment schemes are not included and therefore do not qualify as financial intermediaries within the meaning of Art. 2 para. 2 AMLA. Furthermore, custodian banks are also not affected; however, since they must be a bank within the meaning of the Banking Act (Art. 72 CISA), they are financial intermediaries under Art. 2 para. 2 let. a AMLA.
33SICAVs, SCmPCs, and SICAFs are collective investment schemes in corporate form. SICAVs are open-ended funds, while SCmPCs and SICAFs are closed-ended funds (see Art. 8 and 9 LPCC). While SICAVs and SCmPCs are frequently used in practice, there are currently no SICAFs due to regulatory constraints and tax implications, which make the product unattractive.
34In accordance with Art. 40 para. 1 and 2 OBA-FINMA, SICAVs, SCmPCs, and SICAFs must verify the identity of the subscriber when subscribing to unlisted Swiss collective investment schemes and identify the controlling person or beneficial owner in the same cases as fund management companies (see N. 27). They also entrust the custodian bank with the performance of due diligence and documentation obligations, based on Art. 40 para. 3 OBA-FINMA, in a similar manner to fund management companies (see N. 28).
35Persons who professionally manage assets in the name and on behalf of collective investment schemes or pension funds are considered to be collective asset managers (Art. 24 para. 1 FINMASA). As with asset managers (N. 21), this includes not only “traditional” discretionary management activities, but also advisory activities involving the transmission of orders or “execution only” activities, provided that there is a power of attorney or fiduciary holding of assets, even in the absence of any discretionary management.
36Collective asset managers who operate below the “de minimis” threshold are considered asset managers within the meaning of Art. 17 para. 1 FIDL and are therefore classified as financial intermediaries within the meaning of Art. 2 para. 2 let. abis AMLA. This primarily concerns collective asset managers managing collective investment schemes whose investors are qualified within the meaning of Art. 10 para. 3 or 3ter CISA, if the value of the funds they manage does not exceed CHF 100 million in total, including values acquired by means of leveraged financial instruments, or CHF 500 million in total if the funds do not contain any leveraged financial instruments and do not grant any rights to redemption for a period of five years from the date of the initial investment (closed-end funds) (Art. 24 para. 2 let. a FinIA). This also applies to collective asset managers managing the assets of pension funds where the assets of the latter do not exceed CHF 100 million in total or, in the mandatory area, 20% of the assets of a single pension fund (Art. 24 para. 2 let. b LEFin).
37The FINMA AIFM Regulations contain specific provisions for managers of collective assets of foreign collective investment schemes. These provisions do not apply to managers of Swiss collective investment schemes, as in this case the identification obligations are incumbent on the fund management company (see N. 27 f.). In accordance with Art. 41 para. 1 FINMA AEO, managers of collective assets of foreign collective investment schemes must identify the subscriber and identify the controlling person or beneficial owner of the assets of the foreign collective investment scheme i) if neither the foreign collective investment scheme nor its asset management company is subject to anti-money laundering and counter-terrorist financing regulations and adequate prudential supervision, (ii) if they do not provide evidence of the application of adequate anti-money laundering and counter-terrorist financing regulations by another financial intermediary subject to adequate prudential supervision, and (iii) if the amount invested exceeds CHF 15,000. With regard to the concept of subscriber and adequate regulation and supervision, see N. 27. Thus, the application of due diligence obligations in relation to subscribers will depend, in addition to the amount subscribed, mainly on the country of domicile of the managed foreign fund or its management company. Pursuant to Art. 41 para. 2 OBA-FINMA, it is not necessary to obtain a declaration concerning the controlling owner or beneficial owner of the assets if the subscriber is a financial intermediary pursuant to Art. 2 para. 2 lit. a to d AMLA or a foreign financial intermediary subject to adequate anti-money laundering and counter-terrorist financing regulations and prudential supervision. This provision is similar to that for fund management companies, see N. 27.
38In accordance with Art. 41 para. 3 AMLO-FINMA, CDB 20 applies to the methods used to identify the counterparty, the controlling party and the beneficial owner of the assets, as well as to any other activities of the asset manager that are relevant to the AMLA.
E. Insurance institutions
39In accordance with Art. 2 para. 2 let. c AMLA, insurance institutions within the meaning of the ISA, i.e. “insurance companies” according to the terminology used by the ISA, are to be classified as financial intermediaries if they carry out direct life insurance business or if they offer or distribute units in collective investment schemes. Insurance companies under the ISA are subject to supervision by FINMA and require authorization from FINMA in order to carry out their activities.
40Unlike the other types of regulated institutions listed in Art. 2 para. 2 AMLA, which must always be classified as financial intermediaries due to their prudential status, regardless of the activities they actually carry out, the scope of application is limited for insurance companies, which are to be classified as financial intermediaries and are therefore subject to the AMLA pursuant to Art. 2 para. 2 AMLA only if they carry out direct life insurance activities or distribute collective investments. For these activities, the due diligence obligations under the AMLA must be complied with. In addition, the due diligence obligations under the AMLA must also be complied with for any other activity that qualifies as financial intermediation, as is the case for any regulated financial intermediary (see N. 10).
41Insurance companies subject to the ISA are those that engage in private insurance in the form of direct insurance or reinsurance. Insurance companies that are not subject to the ISA, e.g. social insurance companies or public insurance companies (in particular cantonal building insurance companies) are not covered by Art. 2 para. 2 let. c AMLA. Insurance intermediaries pursuant to Art. 40 ff. ISA are also not covered by this provision.
42Life insurance means personal insurance (as opposed to property insurance) and includes a savings component. Pure risk insurance and insurance contracts under pillars 2 and 3a are not affected (Art. 43 FINMA AEOIF), nor are property insurance, other personal insurance (in particular health or accident insurance) or reinsurers.
43With regard to the distribution of collective investment schemes, this activity is considered to be financial intermediation and is subject to the AMLA pursuant to Art. 2 para. 2 AMLA if the insurance company, in addition to distributing funds, simultaneously accepts assets from its clients/insured persons. The simple distribution of funds does not involve any elements of financial intermediation and is therefore not subject to the AMLA.
44Furthermore, insurance companies, including insurance companies other than those referred to in Art. 2 para. 2 let. c AMLA, remain subject to the AMLA if they engage in financial intermediation as defined in Art. 2 para. 3 AMLA, in particular when granting mortgages.
45In accordance with Art. 12 AMLA, FINMA is responsible for supervising insurance companies in accordance with Art. 2 para. 2 let. c AMLA. With regard to due diligence obligations, these are governed, for insurance companies in the areas of life insurance and mortgage lending, by the provisions of the Regulations of the Self-Regulatory Organization of the Swiss Insurance Association (SIA) for the prevention of money laundering and terrorist financing pursuant to Art. 42 para. 1 OBA-FINMA, regardless of whether they are members of the SIA-SIA. If an insurance company carries out other financial intermediation activities unrelated to insurance, outside the regulatory remit of the SIA-SIA, e.g. asset management or lending, the general provisions of the FINMA AMLA on money laundering and the identification requirements of Art. 44 to 71 FINMA AMLA are decisive and applicable according to FINMA. In this context, it would have been welcome to have a Title 5 and a less restrictive description of the scope of application in Art. 43a AMLA-FINMA in order to avoid any contradictions and thus legal uncertainty.
F. Securities dealers
46In accordance with Art. 2 para. 2 let. d AMLA, securities dealers referred to in Art. 2 para. 1 let. e FINMASA must be classified as financial intermediaries. They are subject to supervision by FINMA and require authorization from FINMA in order to carry out their activities.
47Securities dealers are persons who, on a professional basis, i) trade in securities in their own name, on behalf of clients, ii) trade in securities on a short-term basis on their own account, are primarily active on the financial market and could jeopardize the proper functioning of the market, operate as a member of a trading platform or operate an organized trading facility within the meaning of Art. 42 FINMASA, or iii) trade in securities on a short-term basis on their own account and offer the public, on a permanent basis or on request, a price for certain securities (market makers) (Art. 41 FINMA).
48In accordance with Art. 35 OBA-FINMA, CDB 20 applies to securities firms for the verification of the identity of the contracting party and the identification of the controlling person and the beneficial owner of the assets.
G. Central counterparties and central securities depositories
49In accordance with Art. 2 para. 2 let. dbis AMLA, central counterparties and central securities depositories within the meaning of the LIMF are to be classified as financial intermediaries. They are subject to supervision by FINMA and require authorization from FINMA in order to carry out their activities.
50Central counterparties are organizations based on common rules and procedures that interpose themselves between the counterparties to a securities transaction or other financial instrument contract, thereby becoming the buyer to every seller and the seller to every buyer (Art. 48 FIDMA).
51Operators of a central depository or a securities settlement system are considered central depositories (Art. 61 para. 1 FINMASA). A central depository is an organization that provides centralized custody of securities and other financial instruments under common rules and procedures (Art. 61 para. 2 FINMASA). A securities settlement system is an organization that clears and settles transactions in securities and other financial instruments in accordance with common rules and procedures (Art. 61 para. 3 LIMF).
52In accordance with Art. 17 let. a LBA, FINMA is competent to specify due diligence obligations by means of an ordinance. However, the FINMA AMLO does not apply to central counterparties and central securities depositories (Art. 3 para. 1 FINMA AMLO a contrario). In practice, FINMA will determine the modalities for implementing due diligence obligations as part of its licensing and supervisory activities.
H. Payment systems
53In accordance with Art. 2 para. 2 let. dter AMLA, payment systems, insofar as they require authorization from FINMA within the meaning of Art. 4 para. 2 AMLA, are to be classified as financial intermediaries. They are subject to supervision by FINMA and require authorization from FINMA in order to carry out their activities.
54Organizations based on common rules and procedures that serve to clear and settle payment obligations are considered payment systems within the meaning of the LIMF (Art. 81 LIMF). The operator of a payment system must obtain authorization from FINMA if the functioning of the financial markets or the protection of financial market participants so requires and if the payment system is not operated by a bank (Art. 4 para. 2 AMLA).
55Other payment systems that are not covered by Art. 2 para. 2 let. dter AMLA, i.e. payment systems that do not require authorization from FINMA under the FIML, may nevertheless fall under Art. 2 para. 3 AMLA, in particular let. b (services in the field of payment transactions).
56In accordance with Art. 17 let. a AMLA, FINMA is competent to specify due diligence obligations by means of an ordinance. However, the FINMA AMO does not apply to payment systems (Art. 3 para. 1 FINMA AMO a contrario). As with central counterparties and central securities depositories (see N. 51), FINMA will in practice determine the modalities for implementing due diligence obligations as part of its licensing and supervisory activities.
I. Trading systems based on DLT
57In accordance with Art. 2 para. 2 let. dquater AMLA, trading systems for securities based on distributed ledger technology (DLT) within the meaning of Art. 73a FINMASA qualify as financial intermediaries. They are subject to supervision by FINMA and require authorization from FINMA in order to carry out their activities.
58Professionally operated organizations intended for the multilateral trading of securities based on DLT, aimed at the simultaneous exchange of offers between several participants and the conclusion of contracts according to non-discretionary rules, and fulfilling at least one of the following conditions, are considered trading systems based on DLT: a. they admit participants referred to in Art. 73c para. 1 let. e LIMF; b. they ensure the centralized custody of securities based on TRD on the basis of common rules and procedures; or c. they clear and settle securities transactions based on TRD on the basis of common rules and procedures (Art. 73a para. 1 LIMF).
59Trading systems based on DLT have been added to the list in Art. 2 para. 2 AMLA with effect from August 1, 2021, as part of the adaptation of federal law to developments in distributed ledger technology, since they are likely to carry out activities that are considered to be financial intermediation. Title 5 of the FINMA AEOF (Art. 43a ff. FINMA AEOF) is applicable and specifies, in particular, the requirements for verifying the identity of the contracting party and identifying the beneficial owner.
J. Casinos
60In accordance with Art. 2 para. 2 let. e AMLA, casinos within the meaning of the Gaming Act (LJAr) are to be classified as financial intermediaries. In addition, the Gaming Act also stipulates that they are subject to the AMLA (see Art. 67 para. 1 LJAr). Casinos within the meaning of the Casinos Act must obtain a license from the Federal Council (Art. 5 and 6 Casinos Act) and authorizations from the Federal Gaming Board (FGB) for the casino games they operate (Art. 16 Casinos Act). They are supervised by the FSTC, particularly with regard to compliance with money laundering obligations (Art. 97 para. 1 let. a ch. 2 LJAr and Art. 12 let. b AMLA). The FSTB is also responsible for specifying the due diligence obligations under the AMLA (Art. 1 para. 1 let. b AMLA), which it has done by means of the FSTB AMLO.
61In accordance with Art. 67 para. 2 LJAr, the scope of due diligence obligations in the fight against money laundering depends on the risk and characteristics of the game and the distribution channel. For games operated online, the identification of the contracting party at the time of establishing the business relationship may be based on a self-declaration (Art. 68 para. 1 LJAr). The identity of the contracting party must be verified in accordance with Art. 3 para. 1 AMLA when the monthly stakes or winnings, whether one-off or cumulative over a month, reach a significant amount (Art. 68 para. 2 LJAr). The amounts considered to be significant for casino games are determined by the FMCA and currently stand at CHF 4,000 (Art. 3 OBA-CFMJ).
K. Large-scale gaming operators
62In accordance with Art. 2 para. 2 let. f AMLA, large-scale gaming operators within the meaning of the LJAr are to be classified as financial intermediaries. In addition, the LJAr also stipulates that they are subject to the AMLA (see Art. 67 para. 1 LJAr). Large-scale gaming operators must obtain a gaming license from the inter-cantonal supervisory and enforcement authority referred to in Art. 105 LJAr (Art. 24 para. 1 LJAR). They are supervised by the aforementioned inter-cantonal authority, in particular with regard to compliance with money laundering obligations (Art. 107 para. 1 let. a ch. 2 LJAr and Art. 12 let. bbis AMLA). The FDJP is responsible for specifying the due diligence obligations under the AMLA (Art. 1 para. 1 let. c AMLA), which it has done by means of the OBA-FDJP.
63 In accordance with Art. 67 para. 2 LJAr, the scope of due diligence obligations in the fight against money laundering depends on the risk and characteristics of the game and the distribution channel. Relief has been provided for operators of large-scale games that are not operated online or are operated online. Operators of large-scale games that are not operated online only have to comply with the due diligence obligations under Art. 3 to 7 AMLA when a player wins a large amount (Art. 67 para. 3 LJAr). In the case of operators of large-scale games that are operated online, the identification of the contracting party at the time of establishing the business relationship may be based on a self-declaration (Art. 68 para. 1 LJAr). The identity of the contracting party must be verified in accordance with Art. 3 para. 1 AMLA only when the monthly stakes or winnings, whether one-off or cumulative over a month, reach a significant amount. The FDJP is responsible for determining the amounts considered significant, taking into account the dangers associated with the games concerned (Art. 67 para. 4 LJAr). To date, the thresholds are set at between CHF 5,000 and CHF 25,000 depending on the type of game and the risk of the business relationship between the operator and the player (Art. 3 and 4 OBA-DFJP).
L. Commercial assayers
64 In accordance with Art. 2 para. 2 let. g AMLA, commercial assayers and group companies referred to in Art. 42bis LCMP must be classified as financial intermediaries. Pursuant to Art. 42bis para. 1 LCMP, commercial assayers who trade in bank precious metals on a professional basis, either themselves or through a group company, must obtain a license from the Central Office for the Control of Precious Metals (Central Office). They are subject to supervision by the Central Office with regard to compliance with AMLA obligations (Art. 42ter LCMP and Art. 12 para. bter AMLA). The FDFA is responsible for specifying the due diligence obligations under the AMLA (Art. 17 para. 1 let. d AMLA), which it has done by means of the OBA-FDFA.
65 Before the status of financial intermediary directly subject to FINMA supervision (IFDS) was repealed with the entry into force of the FinIA and the related amendments to the AMLA, commercial assayers who traded in bank precious metals and were thus considered financial intermediaries within the meaning of the AMLA were, for the most part, directly subject to FINMA supervision as DFI. With the abolition of DFI status, they would have had to join a SRO for AMLA supervision, which would have created various practical difficulties. During the consultation process on the FinIA, it was therefore decided, on the basis of a proposal by the Swiss Precious Metals Manufacturers and Traders Association (ASFCMP), to strengthen the powers of the central office by also assigning it AML supervision of commercial assayers. The AMLA supervisory powers of FINMA and the SROs were thus transferred to the Central Office with effect from January 1, 2023, without any material changes, as the Central Office had largely adopted FINMA's practices. The centralization of powers relating to AMLA and LCMP supervision within a single authority is entirely justified. This has improved the effectiveness of supervision, avoided duplication, and limited costs for supervised entities, while ensuring the use of a state body that is known, understood, and accepted internationally.
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